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Changing Custody

By Snyder & Sarno on November 19, 2013


 A major issue that often accompanies a New Jersey divorce is the issue of child custody. Once custody has been decided, the court will enter a custody order indicating which parent has custody of the children. However, as with many instances in family law, just because child custody has been decided at one time does not mean that the non-custodial parent cannot later file for a change in custody. If the non-custodial parent wishes to file for a change in custody, that parent must prove changed circumstances. This can be harder to prove than it may seem, as evidenced by the recent case of Marchese v. Grande.

 In that case, after a New Jersey divorce was granted, there was a twenty-two day custody trial that resulted in the mother being awarded sole custody of the couple’s two sons. A few years later, the father filed for a change in custody, alleging multiple grounds for a finding of changed circumstances, including that the mother “was being evicted for the second time; had tried to have one of their sons falsely diagnosed with autism; failed to provide him with ongoing medical and educational information on the children; tried to have [him] put in jail for violating a final restraining order; and had pled guilty to a second-degree felony that would likely result in jail time.” The family part judge determined that the mother had pled guilty to a third-degree charge and had not been incarcerated and that she was not being evicted. Further, the children had been living with their mother for six years. Based on this, the father had not shown any evidence of changed circumstances and the family part judge rejected his request.

 The Appellate Division agreed with the family judge. The court explained that in order to show that a change in custody is warranted, the party seeking the change in custody must demonstrate a substantial change in circumstances and that “the changed circumstances affect the welfare of the child such that his or her best interests would best be served by modifying custody.” The alleged changed circumstances will then be compared to the circumstances as they were when the initial custody order was entered. After this, there will be a plenary hearing if there is a “genuine and substantial factual dispute” about the children’s welfare.

 Deferring to the findings of the family part judge, the Appellate Division found that there was  not any evidence that the mother’s felony criminal conviction actually affected the children at all, especially given that the children had been performing well at school. Therefore, the change in custody was denied for failure to demonstrate changed circumstances that negatively affected the children’s welfare and best interests.

 As Marchese shows, when filing for a change in custody, it is extremely important to demonstrate not only changed circumstances, but that a change in custody is in the children’s best interests. Without showing that a change in custody is in the children’s best interests, it is highly likely that your request will be denied. This is because when the original custody order is entered, it is decided based on the best interests of the children. If there has not been a negative effect on the children, then their best interests have not changed, and the custodial parent should retain custody.

If you have questions about your child custody order or your New Jersey divorce, please contact the experienced attorneys at Snyder & Sarno at (973) 274-5200.

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